OF THE LAW SOCIETY OF SCOTLAND - The Journal Online

Journal
Repossession
May 2002 Volume 47 No 5 24
achieve service. However, as no other method of
service is competently provided for in the new
provisions, he is unable to comply with his service
obligation. In the case of a calling-up notice or notice of
default, the legislation expressly provides that if a
creditor has failed to comply, the calling-up notice or
notice of default are held to be of no effect6 . In the case
of court proceedings where, for example, Form F has
not been properly served on the occupier, the
argument would be that the action is premature due to
the failure to serve the mandatory notice.
There is support, below, for the view that no other
method of service is competent and so the difference
between the first and second arguments comes to be
whether a creditor has fulfilled his obligations simply by
sending the notices whether or not actual service
results. The issue cannot be free from doubt but it is
submitted that the first argument is to be preferred for
the reasons stated above.
The third argument, which has also been advanced by
Ms Craigie and the Scottish Executive, is that the
difference between the first and second arguments is
academic as the Act does not in fact preclude service by
other means, as it does not provide that notices may be
issued only by recorded delivery post. It is certainly true
that the 2001 Act does not expressly exclude service by
other means.
The view that service by sheriff officers remains
competent has received some support from
commentators on the Act. Indeed, it appears that the
drafters of the legislation envisaged that service might
take place in an alternative manner.The new certificate
of citation provides that court proceedings may be
served by sheriff officer7 and it may be assumed that the
Executive proceeded on the basis that the court
proceedings would be served at the same time as the
explanatory notices in Forms E & F.While that may well
have been the state of mind which led to these
provisions8 , it is difficult to interpret “shall be sent by
recorded delivery” as meaning that other methods of
service are permitted. It is submitted that there is
insufficient ambiguity in the wording which would allow
the courts to give creditors latitude in their choice of
method of service.
Further, in Govan Housing Society v Kane9 , Sheriff
Johnston declined to permit service of a notice to quit
by any method of service other than those provided for
in Ordinary Cause Rule 34.8. It is accordingly submitted
that this argument is wrong and that service of the
notices to the occupier and to accompany court
proceedings is not permitted by sheriff officer10 .
Nevertheless, a creditor may take the view that the best
option is a ‘belt and braces’ approach where, having sent
an unsuccessful recorded delivery notice to the
occupier or notice accompanying court proceedings to
the debtor or proprietor, the creditor then has the
notice served by sheriff officer11 .
There are attractions to this approach.The creditor has
sent the notices by recorded delivery and so, if the first
argument is correct, he has fulfilled his obligations. If it is
incorrect, but the third argument is correct, he meets his
requirements by service by sheriff officer. If the second
argument is correct, he has not validly complied with his
obligations but it would have been impossible to do so
and he has at least done all he can to try to bring the
matter to the attention of the recipient of the notice.
Regrettably, the matter may not be as simple as that. If
the second argument is correct, then service of the
notices has not been made and, despite what the
creditor may have tried to do, there may be a
fundamental problem with his right to proceed further.
If that was all, there might be no real downside in this
approach, other than the additional cost of sheriff officers.
However, serving the notices by sheriff officer where the
creditor is not entitled to do so may give rise to a claim
by the recipient that the creditor has wrongfully
instructed sheriff officers to serve a document on him
when he has no power to do so. Such service might be
argued to be akin to wrongful diligence12 or a breach of
Article 8 and Article 1 of the First Protocol to the
European Convention on Human Rights.
Practical issues of service
Very often the debtor will be the same person as the
occupier and so the difficulty over service of notices on
the occupier may be overcome if service is made on the
debtor. However, that does not assist in resolving the
difficulties in relation to service of explanatory notices,
such as Form E, on the debtor himself.
It is undoubtedly the case that the difficulties over these
provisions will soon be the subject of court decision. As
service of the explanatory notice forms which
accompany court proceedings should be served with
the service copy court papers, a common occurrence
will be that the creditor has both the form and the
service copy court papers returned to him together
where the recorded delivery attempt has been
unsuccessful.
Standing the views expressed above, the appropriate
course for the creditor to adopt in these circumstances
is to remove the explanatory notice form from the
package and thereafter have the service copy court
papers served by sheriff officers, counter-intuitive as that
at first may seem. The alternative, in terms of the third
argument, is to have all the papers served by sheriff
officers. Even if the explanatory notice (such as Form E)
is not served by sheriff officers, the defender will still
have notice of his right to make an application for a
Section 2 Order as the new Form of Citation for such
actions13 makes reference to his ability to do so and the
procedure therefor.
Notwithstanding the difficulties on service, it may be
possible for a creditor to argue that appearance by a
debtor or applicant cures any defect in service of the
court proceedings14 . However, if the defect relates to
service of a notice on which the action is based, such as
where a calling-up notice has been raised and followed
by court proceedings related thereto, appearance in the
court action will not remedy the defect.
Conclusion
It is submitted that the creditor fulfils with his obligations
in relation to service on the occupier and service of
accompanying notices to court proceedings if he sends